On October 17, 2013, the Alberta Court of Queen's Bench will
hear two applications that aim to extend the Supreme Court of
Canada's decision in Chaoulliv. Quebec (Attorney
General)1
("Chaoulli").2 Represented
by John Carpay of the Justice Centre for Constitutional Freedoms,
Darcy Allen and Richard Cross (the "Applicants") are
challenging the constitutionality of section 26(2) of the
Alberta Health Care Insurance Act3,which
establishes a prohibition on the sale and purchase of private
insurance for services that are available through the public health
care system in Alberta. The Applicants claim that this
provision violates their right to life, liberty and security of the
person under section 7 of the Canadian Charter of Rights and
Freedoms4 ("Charter").

Factual Background 5

The Applicants both suffered from severe continuous back pain
that prevented them from working and carrying out simple daily
activities. Mr. Cross' pain stemmed from a multiple-level
degenerative disc disease. He underwent a partial discectomy
in December of 1998 but his pain continued to get progressively
worse. After being informed that surgery was not available in
Canada for his condition, Mr. Cross applied to Alberta's
Out-of-Country Health Services Committee in 2010 seeking funding
for spinal surgery at the Laser Spine Institute in Phoenix,
Arizona. The Committee denied his request so Mr. Cross
personally paid the associated cost of $24,236.34 to obtain the
procedure at the clinic in Phoenix on March 18, 2010.

Mr. Allen's back pain arose from an injury he suffered while
playing hockey in December of 2007. After many unsuccessful
treatments, surgery was recommended in May of 2009. Mr. Allen
claims that the surgery was initially scheduled to take place in
September of 2010 but, in December of 2009, he was informed that he
would have to wait an additional eighteen months or more. Mr.
Allen claims that such a wait time would have been unbearable so he
instead chose to personally pay $77,000.00 to receive the surgery
sooner at a hospital in Great Falls, Montana. He claims that
he did not apply to Alberta Health Services for funding for
out-of-country treatment because he believed that his application
would ultimately be rejected.6

For both Applicants, the surgical procedures they received in
the United States resulted in a dramatic decrease in the pain they
had been experiencing and marked the start of a gradual return to
significantly improved health.

The Claims

The Applicants allege that Alberta's ban on private health
insurance has created a "virtual monopoly" in the health
care system, which, in combination with the government's
failure to provide timely access to medical treatment, deprived the
Applicants of their right to life, liberty and security of the
person. They seek a declaration that the prohibition on
private health insurance under s. 26(2) of the Alberta Health
Care Insurance Act is unconstitutional.7

In addition, Mr. Cross claims that the decisions of the
Out-of-Country Health Services Committee and the Out-of-Country
Health Services Appeal Panel to deny him funding should be quashed
as unreasonable. Mr. Cross and Mr. Allen also seek
reimbursement for the expenses they incurred to obtain
out-of-country treatment.

Application of theChaoulliDecision

This case is an attempt to extend the decision of the Supreme
Court of Canada ("SCC") in Chaoulli. In
2005, the majority8 of the SCC ruled in
Chaoulli that Quebec's ban on private health care
insurance violated section 1 of the Quebec Charter of Human
Rights and Freedoms9because it created a virtual
monopoly over health care which resulted in lengthy delays in
treatment that adversely affected citizens' security of the
person. Following this decision, the Quebec government adapted
the ban to allow for private health insurance in very limited
circumstances.10

Although the applicants in Chaoulli also argued that
Quebec's prohibition violated section 7 of the Canadian
Charter, the SCC was divided on this issue.
McLachlin C.J., Major J. and Bastarache J. held that Quebec's
law prohibiting private health insurance violated section 7 of the
Charter because it impinged on the right to life, liberty
and security of the person in an arbitrary fashion.
Specifically, they held that people suffer and die on wait lists
that are caused by a prohibition on insurance and this prohibition
is not necessary for preserving the public health care
system. Justices Binnie, LeBel and Fish found that the
prohibition did not breach either the Quebec or Canadian
Charter. Justice Deschamps focused on the Quebec Charter
and did not engage in an analysis of section 7 of the Canadian
Charter. As the SCC failed to provide a majority
ruling that the prohibition violated section 7 of the Canadian
Charter, the relief sought by the Applicants in this case
would go beyond that which was provided in Chaoulli.

The Applicants rely heavily on the Chaoulli decision in
their written briefs. They claim that the Alberta prohibition
on private health insurance is substantially similar to the Quebec
provisions that were struck down in Chaoulli.11
The Applicants argue that the Court in Chaoulli
unanimously agreed that the prohibition on the purchase of private
health insurance deprives patients of their rights under section 7
of the Charter and that the only point in contention was
whether this deprivation was in accordance with the principles of
fundamental justice.12 They argue that there is no
evidence that lengthy wait times for necessary medical treatment
have been reduced since the SCC's decision in
Chaoulli. Furthermore, the Applicants claim
thatbecause delays in Alberta's public system place their
health and security at risk, they should be permitted to purchase
insurance in order to access private health services in a timely
manner. Relying on the reasoning of McLachlin C.J. and Major and
Bastarache J.J. in Chaoulli, the Applicants claim that the
prohibition is arbitrary because it does not serve the goal of
providing patients with reasonable access to necessary health care
and thus is in violation of the principles of fundamental
justice.13

The Province of Alberta's Response

The Province of Alberta argues that Mr. Cross' case is not
about delay in obtaining medically necessary treatment.
14They claim that it is instead about obtaining a
surgical procedure that is performed in Canada but which Mr.
Cross' Canadian physicians held was not an option for treating
his condition. Alberta argues that, in effect, Mr. Cross is asking
the court to interpret section 7 of the Charter as imposing a
positive duty on the government to fund medical treatment. As
a result, Alberta takes the position that the Chaoulli
decision has no relevance to Mr. Cross' claim. Despite
this assertion, Alberta responds fully to Mr. Cross' section 7
argument in the event that the Court considers delayed access to
health care to be a live issue in his case.

Alberta also takes the position that Mr. Allen and Mr. Cross
have failed to prove that the ban on private health insurance
caused the delays and pain they experienced. Specifically,
Alberta states that the Applicants' argument requires the court
to accept the unproven assumptions that without the prohibition,
there would be no wait times and, further, that the Applicants
would have been able to purchase private
insurance.15 With respect to the issue of wait
times, Alberta notes that, since Chaoulli, the provincial
government has implemented a number of initiatives in order to
address lengthy wait lists. Alberta argues that the
connection, therefore, between the prohibition on private health
insurance and the alleged harm suffered by the Applicants is too
remote to support a conclusion that the prohibition violated the
Applicants' rights to security of the person under section
7.

Alberta further contends that the prohibition on private health
insurance is not contrary to any principle of fundamental justice
as required for a finding of a breach of section 7 of the
Charter. Relying on the reasoning of Justices Binnie,
LeBel and Fish in Chaoulli, the province claims that the
Applicants have not successfully identified a principle of
fundamental justice that has been violated. In reply to the
Applicants' argument that the prohibition on private health
insurance is arbitrary, Alberta argues that the law is rationally
connected to the goal of providing citizens with equal access to
health care. Alberta argues that it wants a health care system
where access is governed by need rather than wealth, status or
insurability, and the prohibition on private health insurance
accomplishes this objective.16

With respect to the out-of-country treatment claims,
Alberta's position is that since Mr. Allen never applied for
out-of-country funding, as required by Alberta's
Out-of-Country Health Services Regulation (the
"Regulation"), there is no causal connection between the
Regulation and the alleged breach of his section 7 rights. In
reply to Mr. Cross' out-of-country claims, the province argues
that he has not proven on a balance of probabilities that the
Regulation breached his section 7 rights. Finally, Alberta
claims that contrary to Mr. Cross' assertions, the Regulation
provides a funding scheme that is administratively fair and not
ambiguous or arbitrary.

Conclusion

The applications of Mr. Cross and Mr. Allen will be heard
together on October 17, 2013. These cases will afford the
Alberta Court of Queen's Bench an opportunity to provide
greater clarity on the application of section 7 of the
Charter in the context of timely access to health care and
the legality of bans on private health insurance.

5.There are some differences between the facts as set out
in the Applicants' Briefs and as set out in the responding
Briefs of the Province of Alberta. For the purposes of this
bulletin, we have summarized the factual background as set out by
the Applicants.

6 Allen Brief,supranote 2
at para 14.

7 The Applicants additionally seek a declaration that
theOut-of-Country Health Services
Regulation, Alta Reg 78/2006, which establishes
Alberta's out-of-country health services scheme, is
unconstitutional. In the alternative, the Applicants seek a
declaration pursuant to section 52 of the Canadian Constitution
that subsection 26(2) of theAlberta Health Care
Insurance Actand Alberta'sOut-of-Country Health Services Regulationare inconsistent with section 7 of theCharter, that they cannot be saved under
section 1 of theCharter, and are
therefore of no force or effect.

8 The SCC was split 4:3 on the issue of whether the
prohibition violated the Quebec Charter. The majority was
comprised of McLachlin C.J. and Major, Bastarache, and Deschamps
JJ.

14 Brief of the Minister of Justice and Solicitor General
and Attorney General of Alberta,Cross v.
Alberta, 1101-17315 at para 3[Alberta Brief in
Cross].

15 Alberta Brief in Cross,supranote 14 at para 86; Brief of the Minister of Justice and
Solicitor General and Attorney General of Alberta,Allen v. Alberta, 1101-17169 at para 95
[Alberta Brief in Allen].

Lilly markets CIALIS® (tadalafil) in Canada for the treatment of erectile dysfunction. Both Mylan Pharmaceuticals ULC and Apotex Inc. sought approval for generic versions of tadalafil and were opposed by Lilly.

This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).

Email Address

Company Name

Password

Confirm Password

Mondaq Topics -- Select your Interests

Accounting

Anti-trust

Commercial

Consumer

Criminal

Employment

Energy

Environment

Family

Finance

Government

Healthcare

Immigration

Insolvency

Insurance

International

IP

Law Performance

Law Practice

Litigation

Media & IT

Privacy

Real Estate

Strategy

Tax

Technology

Transport

Wealth Mgt

Regions

Africa

Asia

Asia Pacific

Australasia

Canada

Caribbean

Europe

European Union

Latin America

Middle East

U.K.

United States

Worldwide Updates

Check to state you have read and agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you
are granted a non-exclusive, revocable license to access the Website under its
terms and conditions of use. Your use of the Website constitutes your agreement
to the following terms and conditions of use. Mondaq Ltd may terminate your use
of the Website if you are in breach of these terms and conditions or if Mondaq
Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to
read the full text of the content and articles available (the Content). You may
not modify, publish, transmit, transfer or sell, reproduce, create derivative
works from, distribute, perform, link, display, or in any way exploit any of the
Content, in whole or in part, except as expressly permitted in these terms &
conditions or with the prior written consent of Mondaq Ltd. You may not use
electronic or other means to extract details or information about Mondaq.com’s
content, users or contributors in order to offer them any services or products
which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the
suitability of the information contained in the documents and related graphics
published on this server for any purpose. All such documents and related
graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or
its respective suppliers hereby disclaim all warranties and conditions with
regard to this information, including all implied warranties and conditions of
merchantability, fitness for a particular purpose, title and non-infringement.
In no event shall Mondaq Ltd and/or its respective suppliers be liable for any
special, indirect or consequential damages or any damages whatsoever resulting
from loss of use, data or profits, whether in an action of contract, negligence
or other tortious action, arising out of or in connection with the use or
performance of information available from this server.

The documents and related graphics published on this server could include
technical inaccuracies or typographical errors. Changes are periodically added
to the information herein. Mondaq Ltd and/or its respective suppliers may make
improvements and/or changes in the product(s) and/or the program(s) described
herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally
identifies you, including what sort of information you are interested in, for
three primary purposes:

To allow you to personalize the Mondaq websites you are visiting.

To enable features such as password reminder, newsletter alerts, email a
colleague, and linking from Mondaq (and its affiliate sites) to your website.

Mondaq (and its affiliate sites) do not sell or provide your details to third
parties other than information providers. The reason we provide our information
providers with this information is so that they can measure the response their
articles are receiving and provide you with information about their products and
services.

If you do not want us to provide your name and email address you may opt out
by clicking here .

If you do not wish to receive any future announcements of products and
services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to
view the free information on the site. We also collect information from our
users at several different points on the websites: this is so that we can
customise the sites according to individual usage, provide 'session-aware'
functionality, and ensure that content is acquired and developed appropriately.
This gives us an overall picture of our user profiles, which in turn shows to
our Editorial Contributors the type of person they are reaching by posting
articles on Mondaq (and its affiliate sites) – meaning more free content for
registered users.

We are only able to provide the material on the Mondaq (and its affiliate
sites) site free to site visitors because we can pass on information about the
pages that users are viewing and the personal information users provide to us
(e.g. email addresses) to reputable contributing firms such as law firms who
author those pages. We do not sell or rent information to anyone else other than
the authors of those pages, who may change from time to time. Should you wish us
not to disclose your details to any of these parties, please tick the box above
or tick the box marked "Opt out of Registration Information Disclosure" on the
Your Profile page. We and our author organisations may only contact you via
email or other means if you allow us to do so. Users can opt out of contact when
they register on the site, or send an email to unsubscribe@mondaq.com with “no
disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate
registration form. This is a personalised service where users choose regions and
topics of interest and we send it only to those users who have requested it.
Users can stop receiving these Alerts by going to the Mondaq News Alerts page
and deselecting all interest areas. In the same way users can amend their
personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an
identifying user number. The cookies do not contain any personal information
about users. We use the cookie so users do not have to log in every time they
use the service and the cookie will automatically expire if you do not visit the
Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to
personalise a user's experience of the site (for example to show information
specific to a user's region). As the Mondaq sites are fully personalised and
cookies are essential to its core technology the site will function
unpredictably with browsers that do not support cookies - or where cookies are
disabled (in these circumstances we advise you to attempt to locate the
information you require elsewhere on the web). However if you are concerned
about the presence of a Mondaq cookie on your machine you can also choose to
expire the cookie immediately (remove it) by selecting the 'Log Off' menu option
as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example,
advertisers). However, we have no access to or control over these cookies and we
are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement,
and gather broad demographic information for aggregate use. IP addresses are not
linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or
its affiliate sites) are not responsible for the privacy practices of such other
sites. We encourage our users to be aware when they leave our site and to read
the privacy statements of these third party sites. This privacy statement
applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or
contests. Participation in these surveys or contests is completely voluntary and
the user therefore has a choice whether or not to disclose any information
requested. Information requested may include contact information (such as name
and delivery address), and demographic information (such as postcode, age
level). Contact information will be used to notify the winners and award prizes.
Survey information will be used for purposes of monitoring or improving the
functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our
site, we ask them for the friend’s name and email address. Mondaq stores this
information and may contact the friend to invite them to register with Mondaq,
but they will not be contacted more than once. The friend may contact Mondaq to
request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’
information. When users submit sensitive information via the website, your
information is protected using firewalls and other security technology. If you
have any questions about the security at our website, you can send an email to
webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode),
or if a user no longer desires our service, we will endeavour to provide a way
to correct, update or remove that user’s personal data provided to us. This can
usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will
post those changes on our site so our users are always aware of what information
we collect, how we use it, and under what circumstances, if any, we disclose it.
If at any point we decide to use personally identifiable information in a manner
different from that stated at the time it was collected, we will notify users by
way of an email. Users will have a choice as to whether or not we use their
information in this different manner. We will use information in accordance with
the privacy policy under which the information was collected.

How to contact Mondaq

If for some reason you believe Mondaq Ltd. has not adhered to these
principles, please notify us by e-mail at problems@mondaq.com and we will use
commercially reasonable efforts to determine and correct the problem promptly.